11/01/2018

Birthright Citizenship: The Other SideMichael Ramsey

Some media reports make it sound like no legal experts endorse the President's reading of the Constitution's birthright citizenship clause. I do not endorse it. But some do, typically on originalist grounds. Here is some recent commentary:

Contrary to popular belief, the 14th Amendment doesn’t say that all people born in the U.S. are citizens. It says that “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship. Critics of the president’s possible action erroneously claim that anyone present in the United States has “subjected” himself or herself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal immigrants alike.

But that is not what that qualifying phrase means. Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.

The fact that tourists or illegal immigrants are subject to our laws and our courts if they violate our laws means that they are subject to the territorial jurisdiction of the U.S. and can be prosecuted. But it does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.